How Domestic Violence Affects Divorce Proceedings

Every divorce is emotionally charged. Even when the breakup is mutual, it is still a loss. When domestic violence is part of the marriage, however, it can directly affect the outcome of the divorce and any court orders on child custody and support.

There is also the matter of your personal safety, which must be addressed immediately. You might need the help of an experienced divorce attorney who has dealt with domestic violence issues. Having a skilled attorney who is familiar with the family court system in your jurisdiction can help speed up the protective order process and get the divorce settled as quickly as possible.

Prioritizing Safety With Temporary Restraining Orders

When there is a legitimate fear of assault against a spouse or child, it is crucial for that parent to seek protection from the court. These temporary restraining orders (TROs) are enforceable and can result in immediate jail time for anyone who violates them.

Depending on where you live, you might be able to request the following types of TROs:

• Emergency Protective Orders (EPOs): These orders are issued at the request of law enforcement when there is immediate danger. In other words, you can call the police to your home, describe what has happened, and make the request for an EPO. An EPO typically lasts for a few days to a week. That should give you enough time to contact an attorney and file for a longer order.
• Domestic Violence Restraining Orders (DVROs): These orders are issued by a court following a hearing. These mandate that the restrained person stay a specific distance from you, your children, your workplace, and your home. The orders can also include restrictions on communications such as phone calls, texts, and social media posts.
• Automatic Temporary Restraining Orders (ATROs): Common in states like California, these go into effect automatically when the divorce petition is filed. They freeze marital assets, prevent the selling of property, and stop either spouse from taking children out of state.

How Domestic Violence Influences Child Custody Decisions

Family courts take allegations of domestic violence very seriously, especially when child custody decisions need to be made. Before a judge considers any request for legal, physical, or joint custody, they will consider the following:

• The severity and frequency of the abuse
• Whether the child was exposed to the violence
• Any injuries experienced by the child or the other parent
• The abusive parent’s willingness to complete treatment or counseling
• Whether there are active protective orders or criminal proceedings

An accusation of domestic violence does not automatically precludes a parent from seeing their children or even sharing in joint custody. Your family court judge can put specific limits on custody or visitation.

However, if a judge finds that a parent has committed domestic violence, that parent may lose legal custody rights. That could result in the court ruling that one parent receives sole legal custody, and the other parent would be restricted to supervised visitation with the children.

Mediation and Alternative Dispute Resolution

Often, when you file for divorce, the court will either strongly suggest or outright order that you enter into mediation to resolve your issues. Family courts would much rather have couples work out child custody, child support, and property division before the official divorce proceedings. That way, the judge knows the major issues have been resolved.

Mediation allows an objective third party to hear both sides in a divorce and resolve the outstanding issues. If the couple can’t resolve their issues, the judge to make the final rulings. While mediation and alternative dispute resolution (ADR) have helped many couples, they can be a challenge when domestic violence accusations are involved.

In divorces with domestic violence accusations, many jurisdictions allow couples to opt out of mandatory mediation. You can also request safe alternatives, including the following:

• Shuttle Mediation: Instead of being in the same room, you can go to separate office spaces. The mediator will then move between the offices to convey offers and counteroffers.
• Online/Telephonic Mediation: To avoid any physical proximity, you can use video conferencing or phone calls for the mediation sessions.
• Lawyer-Assisted Mediation: Your attorney can directly negotiate on your behalf during the mediation sessions, which can further reduce direct involvement with an alleged abuser.

Both sides must agree to the conditions of the mediation. If your spouse resists, the court can intervene and move the case to trial. The other option is to enter into arbitration. In mediation, the mediator’s outcome is not binding. In arbitration, you will find an objective arbitrator who acts like a private judge. They will review the evidence and make a binding decision about all the pertinent issues. After that, the family court judge will sign off on the agreement to finalize the divorce.

The Legal Impact of Domestic Abuse on Divorce

The harsh reality is that when presented with a history of domestic violence, a family court judge will be inclined to view the abuser as someone who is not a safe person to have custody of children. At the very least, their visitations with the children after the divorce becomes final may have to be supervised. While that might lead to more contentious situations, it is vital to understand that the victims of domestic violence have protections available to them.

The first step is to find a strong legal advocate. The attorneys at Davis & Associates understand divorce law in multiple states. We also appreciate the emotional toll of breaking free from an abuser. Our primary mission is to work closely with our clients to help ensure their safety and the safety of their children. One of the best ways toward that goal is to find a fair resolution to the marital issues in a timely manner. The sooner we can help with the dissolution of the marriage, the sooner you can start rebuilding.

If you’re in a situation where you need the support of restraining orders, we can help. Reach out to our offices to schedule a discussion to lay out all the options for moving forward with your divorce. You’ll feel better knowing you have answers and a legal team dedicated to helping you through the divorce.